Kehoe v. Hanley

Lumpkin, Justice. 1. A witness on the stand was asked, and answered, several questions with reference to the authority of an architect to bind the owner of a'building which was being constructed. No objection was made by the opposite party, either to these questions or answers; but when the examination had reached a certain point, his counsel stated generally to the court: “We object to all questions tending to elicit from the witness answers as to the authority of the architect generally, as we have a definite contract in this ease, and testimony of this kind cannot bind our client.” According to the recital in the motion for a new trial, “the objection was overruled”; but the court certifies that no motion was made to rule out or exclude any of the answers which had 322 already been admitted, and that subsequently no more questions of this kind were asked. The “objection” above quoted was certainly not equivalent to a motion to rule out the testimony already in, and could only relate to testimony of the same kind yet to be introduced; and as no more such testimony was offered or admitted, we find nothing in the court’s action affording any just cause of complaint. 2. It was alleged that the court erred “in leaving to the jury” the construction of a particular clause in a written contract which had been introduced in evidence. This clause was sufficiently described in that ground of the motion for a new trial in which this assignment of error was made, but, unfortunately, the motion fails to state how, or in what manner, the court left to the jury the matter in question. It is therefore impossible for this court to say whether error was committed or not. Undoubtedly the judge ought not to leave to the construction of the jury any portion of a plain and unambiguous written contract. This is a well settled rule, but we are unable to say whether it was violated or not, because we have not before us the language used by the trial judge in this connection, and therefore cannot determine whether the same would have the effect contended for by counsel, or not. 3. Another ground of the motion for a new trial was based upon the refusal of the court to give in charge to the jury a certain written request. The request was pertinent and legal, but as the substance of it was fully covered by the general charge of the court, its refusal is not cause for reversal. The evidence was decidedly conflicting, but there was enough in support of the verdict to sustain it. On the whole, we see no legal reason for granting a new trial. Judgment affirmed,.